Bombay High Court
Wachhalabai Ambu Chitalkar And Others vs Mahadu Dhula Chitalkar Died Thr Lrs ... on 13 August, 2025
2025:BHC-AUG:21899
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9475 OF 2025
WACHHHALABAI W/O AMBU CHITALKAR AND ORS.
VERSUS
MAHADU DHULA CHITALKAR AND ORS.
...
Mr. Sachin Thorat h/f Mr. Y. G. Thorat, Advocate for the
Petitioners.
Mr. A. N. Nagargoje, Advocate for Respondent Nos.1B to 1F and 2.
...
CORAM : S. G. CHAPALGAONKAR, J.
Reserved On : 08th AUGUST, 2025.
Pronounce On : 13th AUGUST, 2025.
ORDER:
-
1. The present petition takes exception to orders dated
01.07.2025 passed below Exhibits 36, 38 and 97 by District Judge-
1, Sangamner in Civil M.A. No.52/2016.
2. The petitioners are original defendants in Regular Civil Suit
No.594/1986. The suit was filed for partition and separate
possession and mesne profit before Civil Judge Junior Division at
Sangamner. The suit was decreed vide judgment and order dated
09.08.1996 against petitioner nos.1 to 3. Aggrieved by judgment
and decree passed by Trial Court, petitioners filed Regular Civil
Appeal No.365/1996 before learned District Judge at Shrirampur.
However, Appeal was dismissed for want of prosecution on
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07.03.2000. The petitioners filed Civil M.A. No.52/2016 for
restoration of Appeal alongwith application for condonation of
delay. However, during pendency of Civil M.A. No.52/2016,
respondent nos.3A, 3A(1) and 3A(5) expired on 28.08.2019,
23.03.2020 and 17.04.2018 respectively.
3. The petitioners filed application below Exhibits 38, 36 and 97
in Civil M.A. No.52/2016 for bringing legal representatives of
deceased respondents alongwith application for setting aside
abatement and condonation of delay of approximately three years.
However, learned District Judge at Shrirampur vide his order
dated 01.07.2025 rejected all three applications.
4. The learned Advocate appearing for petitioners submits that
petitioners are shepherd and requires to stay away from their
native places. They are also ill-literate and sans knowledge of
procedural aspects of Court cases. The learned Appellate Court
ought to have adopted liberal approach and condoned delay, so also
allowed applications for setting aside abatement order and
bringing legal representatives on record.
5. Per contra, Mr. Nagargoje, learned Advocate appearing for
contesting respondents opposes prayers in writ petition.
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6. Having considered submissions advanced, it can be observed
that parties are litigating over immovable property in a suit for
partition and separate possession. In such suit, plaintiffs' and
defendants' stands on same footing. All plaintiffs are defendants
and all defendants are plaintiffs. The adjudication of dispute is
possible only when all parties are before Court. In this
background, although applications filed by petitioners for bringing
legal representatives on record was delayed by almost 2 to 4 years,
it was essential to condone delay and bring legal representatives of
deceased respondents on record, so that final and effective
adjudication of dispute can be made. No doubt that delay is not
technically explained by giving reasons for each and every day.
However, delay does not appear to be intentional. The petitioners
have not derived any advantage by making delay. At this stage
reference can be given to observations of Supreme Court of India in
case of Collector, Land Acquisition, Anantnag & Anr. Vs.
Katiji & Ors.1, which reads thus:
"4. When substantial justice and technical considerations
are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a non-
deliberate delay."
7. In that view of the matter, to secure ends of justice and
complete adjudication of lis before Court, so also to avoid
multiplicity of litigations, liberal approach needs to be adopted.
1 (1987) 2 SCC 107.
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Similarly, respondents/original plaintiffs are required to be
adequately compensated. In result, following order is passed:
ORDER
a. Writ Petition is allowed in terms of prayer Clauses (B), (C)
and (D) subject to payment of cost of Rs.15,000/- to contesting
respondent Nos.1B to 1F and 2.
b. The cost to be deposited with First Appellate Court within
period of four weeks from today.
c. On deposit of cost, it be released in favour of respondent
nos.1B to 1F and 2.
d. In case of failure to deposit cost, impugned order passed by
learned District Judge shall govern the proceeding.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/August-2025
